Thread

Border agents can search cellphones without a warrant or reasonable suspicion

235 points · 198 comments · mmh0000

mmh0000 · 1789758170 · focus · HN ↗
It is insane to me that judges consistently rule that the constitution doesn't apply because there's a "border" within 100 miles.
The 4th Amendment says, exactly:
```
   The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
```
I do not know how that could be unclear. My cellphone is my effect, and arguably, also a "paper". Which SHALL NOT BE VIOLATED. But apparently, I'm too dumb to understand the sentence[1].
[1] <a href="https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution#Border_search_exception" rel="nofollow">https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United...
1. rtkwe · 1789759923 · focus · HN ↗
  So the main argument is that in the time that was written and immediately afterwards we can look to see what they mean by that by how it was implemented. At the time it was understood that the government could and would search goods as they enter the country without warrants to enforce things like tariffs. I think that's a fairly reasonable interpretation of the meaning. Where I think this goes wrong (and maybe deviates from history?) is the conflation of papers and other digital records now with physical goods, historically were people's papers searched as they entered the country (beyond say looking through them to find hidden goods, I mean reading and examining letters and records)?
  1. hdgvhicv · 1789762254 · focus · HN ↗
    The problem when you rely on unclear laws that haven’t been modified for 250 years is they haven’t been modified for 250 years.
    The scale of surveillance now wasn’t even thinkable back then. The ability to encrypt. The bandwidth and latency of communication. The sheer nunber of people, the research into manipulating minds. Does the second ammendment apply to an f35 or a tank? Well it doesn’t really matter, they clearly weren’t in scope when it was written. There were no wiretapping laws in the constitution because there was no wires. unreasonable in 1780 was different to unreasonable today.
    The US has famously failed to update its legal framework via the legislative branch, so It’s upto the judicial branch which seeks to be about interpreting what some wealthy farmers from 250 years ago thought, rather than asking what laws make sense today.
    bluecalm · 1789762712 · focus · HN ↗
    >>The problem when you rely on unclear laws that haven’t been modified for 250 years is they haven’t been modified for 250 years.
    The Constitution gives you some rights but maybe not this one (to not be searched without warrant at a border). The problem is not The Constitution but the legislative branch that didn't make laws to ban it.
    >>what some wealthy farmers from 250 years ago thought, rather than asking what laws make sense today
    It's not the job of judges to invent laws or ponder what laws make sense. That would be legislative branch.
    [deleted] · 1789763839 · focus · HN ↗
    [deleted]

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